4.07 Free Speech

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.07 Free Speech²³⁶

Condominiums can become centers of political activism, especially those with large populations of retirees. Association leaders sometimes attempt to influence official decisions affecting the condominium by delivering the votes of the condominium as a block. Those same leaders may also attempt to check "dissident" owners²³⁷ who do not follow the "party line" or to discourage "outsiders" from campaigning among condominium residents.

The New Jersey Supreme Court has decided several cases concerning condominiums or homeowners associations and free speech rights under its state Constitution. In Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n²³⁸ a New Jersey court held that an association could not prevent the appellant from distributing campaign literature on condominium property. The court conceded the decision was "extremely fact sensitive." Those facts included: the condominium residents constituted 24% of the registered voters in the town; one voting district was made up entirely of condominium residents; and, polling booths were located on condominium property. The association endorsed candidates, distributed flyers listing endorsements, provided absentee ballots, organized voter registration and get-out-the-vote campaigns, and provided poll workers. Applying these facts to law interpreting the free speech protection of the New Jersey Constitution, the court concluded:

The activities engaged in by the Association are similar in nature to what would be expected from a political organization, from its endorsement of candidates to its get-out-the-vote-drives during election time. This court finds that there consistently has been at election time, significant dedication of this property from private to political and thus public use.

In another decision the New Jersey court ruled broadly on the issue of free speech.²³⁹ The community at issue was large, approximately one square mile in size and housing about 10,000 residents. Residents challenged restrictions that limited the number and location of signs and controlled access to a community room and argued they should have "equal access" to the community monthly newspaper. They argued the association, in effect, replaced the role of a municipality in their lives. Therefore, its rules and regulations should be subject to the free speech and free association clauses of the state constitution. The court, however, was dubious. The association, it said, was not acting as a...